Ban the Box Update – California Passes “Ban the Box” Law

by | Nov 20, 2017 | News |

BAN THE BOX UPDATE

Most employment application forms have an inquiry requiring applicants to disclose information about their prior criminal convictions before the employer even considers the applicant. The City of Los Angeles implemented a “ban the box” law earlier this year for employers with 10 or more employees (click here for additional information on the City of Los Angeles law).

Now, Governor Brown signed legislation prohibiting employers with 5 or more employees from asking about criminal convictions before the employer makes a conditional employment offer.

CALIFORNIA’S BAN THE BOX LAW 

Effective January 1, 2018, it is an unlawful employment practice for private employers with 5 or more employees to “include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history.”

Under this law, prior to an offer of employment being made, employers:

  •  may not “inquire into or consider the conviction history of the applicant” until after the employer makes a conditional offer of employment.
  • cannot “consider, distribute, or disseminate information” about arrests that did not result in a conviction, referral or participation in a diversion program, or “convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.”

After making a conditional offer of employment, employers can conduct background checks. Then, if the background check reveals a conviction, the employer is to undertake “an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” In making the assessment, the employer must consider all of the following:

1.     The nature and gravity of the offense or conduct.

2.    The time that has passed since the offense or conduct and completion of the sentence.

3.     The nature of the job held or sought.

The employer can, but does not have to, “commit the results of this individualized assessment to writing.”

Rescinding the Conditional Offer of Employment 

After obtaining information about an applicant’s criminal history, if the employer decides not to move forward with hiring the applicant, the employer must “notify the applicant of this preliminary decision in writing.” The notification must contain all of the following:

1.    Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.

2.     A copy of the conviction history report, if any.

3.     An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond.

The explanation must also advise the applicant that the applicant’s response can include evidence challenging the accuracy of the conviction history report. The applicant then has 5 days to respond to the notice. If the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report, then applicant gets an additional 5 business days to respond to the notice.

The employer has to consider the information submitted by the applicant before making a final decision. If the employer ultimately denies employment because of the applicant’s conviction history (even if that is only part of the reason), the employer must notify the applicant in writing of all the following:

1.     The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.

2.     Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.

3.     The right to file a complaint with the Department of Fair Employment and Housing.

Exceptions to California’s Ban the Box Law 

There are limited occasions where California’s Ban the Box law does not apply:

1.     When a state or local agency is otherwise required by law to conduct a conviction history background check.

2.     Where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. For example, the requirement of a criminal history check may arise with:

  • Home Care Organizations hiring home care aides;
  • Childcare and Education services, such as daycare workers, school staff;
  • Financial Services, such as financial advisors, credit experts;
  • Some Information and Technology, such as systems managers, computer analysts, that have access to private information.

Employers will need to revise their application forms and their offer letters to conform to these new restrictions.

LOS ANGELES CITY BAN THE BOX UPDATE 

As we reported previously, the Los Angeles Fair Chance Initiative for Hiring (FCIHO), (“Ban the Box”), took effect on January 22, 2017 which restricted employers from inquiring into an applicant’s criminal history during the application process. Enforcement and any imposition of fines and penalties for violation of the FCIHO began on July 1, 2017.

The Los Angeles Bureau of Contract Administration (BCA) which has administrative responsibilities for the Ban the Box Ordinance recently published guidance on the Ordinance, as well as forms and posters for use by employers. The BCA has also issued Rules and Regulations for implementing the FCIHO to help private employers, and city contractors/subcontractors, comply with the law. The Los Angeles Bureau of Contract Administration materials include:

  • Fair Chance Initiative for Hiring Ordinance for Private Employers (Click here)
  • Fair Chance Initiative for Hiring Ordinance for City Contractors (Click here)
  • Rules and Regulations implementing the FCIHO (Click here)
  • Fair Chance Initiative for Hiring Overview (Click here)
  • Guidelines for Employers (Short Form) (Click here)
  • Notice to Applicants and Employees for City Contractors (Click here)
  • Notice to Applicants and Employees for Private Employers (Click here)
  • Notice to Rescind Employment Offer Sample Letter (Click here)
  • Fair Chance Initiative for Hiring Complaint Form (English) (Click here)
  • Fair Chance Initiative for Hiring Complaint Form (Spanish) (Click here)

The Rules and Regulations define “Individualized Assessment” as: a written determination made by the Employer that there is or is not an effective link between specific aspects of the Applicant’s Criminal History and the risks inherent in the job duties and responsibilities of the employment position. One of the forms published is the Individualized Assessment and Reassessment Form to help employers comply with the Ban the Box law. The form combines the separate individualized assessment and reassessment form requirements into one document for administrative purposes.

 CONCLUSION

With the passage of the California Ban the Box legislation, small employers (those with 5 or more employees compared to the Los Angeles law covering employers with 10 or more employees) will be required to modify their hiring practices to conform to the restrictions on applicant inquiries.

This Special Bulletin is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2017.

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